IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Sonya Martin, :

 Plaintiff, :

 v. : Case No. 2:11-cv-264

Michael J. Astrue, : JUDGE GEORGE C. SMITH

Commissioner of Social Security, Magistrate Judge Kemp

Defendant. : 

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Sonya Martin, filed this action seeking review of

a decision of the Commissioner of Social Security denying her

applications for disability insurance benefits and supplemental

security income. Those applications were filed in January, 2007,

and alleged that plaintiff became disabled on January 2, 2005. 

After initial administrative denials of her claim, plaintiff

was given a hearing before an Administrative Law Judge on

September 16, 2009. In a decision dated October 29, 2009, the

ALJ denied benefits. That became the Commissioner’s final

decision on February 3, 2011, when the Appeals Council denied

review.

After plaintiff filed this case, the Commissioner filed the

administrative record on June 21, 2011. Plaintiff filed her

statement of specific errors on August 19, 2011. The

Commissioner filed a response on October 25, 2011. No reply

brief was filed, and the case is now ready to decide.

II. The Lay Testimony at the Administrative Hearing

 Plaintiff’s testimony at the administrative hearing is found

at pages 29 through 40 of the record. Plaintiff, who was 48

years old at the time of the hearing and is a high school

graduate, testified as follows.

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Plaintiff worked as an assembler and, more recently, at a

Bob Evans restaurant, but only part-time. She had to stop

working as an assembler due to illness. Her major problems are

pain in her back, neck, arms and knees, as well as breathing

difficulties. She takes a number of medications, one of which

makes her tired. Back pain and muscle spasms make it hard for

her to sleep at night.

Plaintiff testified that she has tried to walk for ten or

fifteen minutes at a time but cannot do so. Sitting in a chair

hurts her back and neck. She can sit for twenty minutes and then 

has to stand for fifteen or twenty minutes. Recently she has

experienced problems using her hands. She can lift about five

pounds and do some light housework and cooking. She has

assistance when she shops for groceries. 

In a typical day, plaintiff gets her daughter ready for

school and walks with her the two blocks to the school. She does

housework sporadically and rests because of her inability to

sleep at night. She has had a cane prescribed for her, and she

is also depressed. She might nap twice a day. Her children

assist her with household chores.

III. The Medical Records

The medical records in this case are found beginning on page

257 of the administrative record. They can be summarized as

follows.

Dr. Brown began seeing plaintiff on September 30, 1996. He

reported on March 1, 2007, that she suffered from a wide variety

of ailments and that she had been prescribed four different

medications. She suffered from persistent fatigue and joint

pain. However, he did not believe she was significantly limited

from performing work-related activities.

Dr. McCloud, a state agency reviewer, reviewed medical

records and concluded, on March 12, 2007, that plaintiff was

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limited to medium work activity. He noted that only the x-rays

of her lumbar spine showed any abnormalities, that she had

bursitis in her left hip and some occasional giving away of her

left knee, and that she had mild COPD or asthma. A subsequent

state agency reviewer, Dr. Vasiloff, thought she was limited to

light work and imposed a restriction on exposure to fumes, odors,

dusts, gases, and poor ventilation due to her asthma and mild

COPD.

Plaintiff was evaluated by Dr. Villanueva based on two

appointments, on March 15 and March 19, 2007. At that time, she

did not need ambulatory aids. She had been referred to physical

therapy for her bursitis and knee problems. Her diagnoses were

diabetes, controlled, hypothyroidism, generalized arthritis,

asthma, and mild COPD. Dr. Villanueva did not believe plaintiff

had any inability to stand, walk, sit, hear, see, and speak, and

her lifting would be limited by her back pain. In December of

2007, however, Dr. Villanueva completed a form stating that

plaintiff could only sit for two hours in a day, stand and walk

for only one hour, lift only five pounds occasionally, had

significant limitations in repetitive reaching, handling, and

fingering, had psychological limitations, and could not work on a

sustained basis. He repeated that information on August 28,

2009.

Plaintiff underwent a psychological evaluation on May 16,

2007. She had never had any mental health care. Her ability to

work at that time was limited by a bladder problem, for which she

was to have surgery. She reported some mood swings. The

diagnoses included an adjustment disorder with depressed mood,

and her GAF was rated at 55, but had been as high as 65 in the

past year. Only mild impairment in her work abilities was noted,

particularly in the area of relating to others due to her bladder

problems. A state agency reviewer concluded that plaintiff’s

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mental impairment was not severe.

In January, 2008, Dr. Song completed a lumbar spine residual

functional capacity questionnaire. He reported having treated

plaintiff for about nine months and had diagnosed her with

chronic lumbosacral sprain and other back problems. Her

prognosis was fair but chronic. His examinations revealed reflex

changes, tenderness, swelling, muscle spasm, and muscle weakness. 

He thought her symptoms would occasionally interfere with her

concentration, but she could not either sit, stand or walk for an

entire work day. She did not need a cane, but did need to take

three to four unscheduled breaks a day, and would have four or

more days a month when she would be absent from work. She had

other restrictions as well. He had previously reported to Dr.

Villanueva on an examination performed on April 11, 2007, noting

that plaintiff had been experiencing back pain for many years but

now was complaining of left hip and left knee pain. His

impression at that time was chronic lumbosacral sprain with left

radiculopathy and internal derangement of the left knee. Dr.

Song subsequently referred plaintiff to Dr. Lingam for spinal

injections, and that specialist also diagnosed degenerative disc

disease as well as spondylosis, sacroiliac syndrome, and

myofascial pain syndrome. Dr. Lingam reported in March, 2009,

that plaintiff could not perform even a full range of sedentary

work. 

Dr. Moncman, a neurosurgeon, also examined plaintiff

pursuant to a referral from Dr. Villanueva, and he found that she

had a full range of motion of the lumbar spine, could walk heel

to toe and squat, could forward bend fully at the waist, and had

normal muscle strength and reflexes. However, her sacroiliac

joints were tender to the touch. He thought she suffered from

mechanical low back pain.

Plaintiff’s back was x-rayed on June 4, 2008. The study

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showed mild degenerative disc disease at L2-3 and L4-5 and

degenerative changes of the facet joints at L3-4 and L4-5. A

prior MRI showed roughly the same findings.

The last exhibit admitted prior to the administrative

hearing was a radiology report from Madison County Hospital. It

showed degenerative disc disease throughout the cervical spine. 

The remaining medical records (Exhibits 37F through 45F) were

apparently submitted only to the Appeals Council.

IV. The Vocational Testimony

Mr. Braunig, a vocational expert, also testified at the

administrative hearing. His testimony begins at page 40. He

noted that plaintiff had worked as a press operator, a motor

vehicle assembler, and a prep cook. The jobs were either light

or medium, and either unskilled or semi-skilled. He was asked

questions about a hypothetical person who could work at the light

exertional level, could lift no more than ten pounds, who would

have to sit fifteen minutes out of each hour, who could not reach

overhead, and who was limited to simple tasks involving only a

minimal degree of personal contact in the workplace and without

production quotas. Such a person could do a variety of light

jobs such as mail clerk, office helper, and photocopy machine

operator. If the person were limited to sedentary work with a

sit-stand option, that person could work in jobs such as

microfilm document preparer and lens inserter. He further

testified that if plaintiff would have to miss three or four days

of work per month, she would not be employable, and that would be

so if she had to take three or four unscheduled breaks during a

work day. 

 V. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 12

through 24 of the administrative record. The important findings

in that decision are as follows.

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The Administrative Law Judge found, first, that plaintiff

met the insured requirements of the Social Security Act through

March 31, 2007. Next, he found that plaintiff had not engaged in

substantial gainful activity from her alleged onset date of

January 2, 2005 through the date of the decision. As far as

plaintiff’s impairments are concerned, the ALJ found that

plaintiff had severe impairments including degenerative disc

disease and vertebrogenic disorder of the cervical spine,

degenerative joint disease of the thoracic spine, chronic lumbar

strain, chronic obstructive pulmonary disease, and adjustment

disorder with depressed mood. The ALJ also found that these

impairments did not meet or equal the requirements of any section

of the Listing of Impairments (20 C.F.R. Part 404, Subpart P,

Appendix 1).

Moving to the next step of the sequential evaluation

process, the ALJ found that plaintiff had the residual functional

capacity to perform a reduced range of light work which does not

require lifting more than ten pounds or overhead reaching, which

does not involve production quotas, which is limited to simple

tasks, and which allows for sitting fifteen minutes out of every

hour. The ALJ accepted the vocational expert’s testimony that

someone with such limitations could perform approximately 12,000

jobs in the regional economy. As a result, the ALJ concluded

that plaintiff had not demonstrated an entitlement to benefits.

VI. Plaintiff’s Statement of Specific Errors

 In her statement of specific errors, plaintiff raises the

following issues. First, she argues that the ALJ erred in the

way in which he evaluated the opinions of her treating

physicians. Second, she argues that the case should be remanded

to consider new and material evidence. The Court generally

reviews the administrative decision under this legal standard:

Standard of Review. Under the provisions of 42 U.S.C.

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Section 405(g), "[t]he findings of the Secretary [now the

Commissioner] as to any fact, if supported by substantial

evidence, shall be conclusive. . . ." Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion'" Richardson v. Perales, 402

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.

NLRB, 305 U.S. 197, 229 (1938)). It is "'more than a mere

scintilla.'" Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

Cir. 1976). The Commissioner's findings of fact must be based

upon the record as a whole. Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th

Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.

1984). In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into

account whatever in the record fairly detracts from its weight.'" 

Beavers v. Secretary of Health, Education and Welfare, 577 F.2d

383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,

340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human

Services, 755 F.2d 495, 497 (6th Cir. 1985). Even if this Court

would reach contrary conclusions of fact, the Commissioner's

decision must be affirmed so long as that determination is

supported by substantial evidence. Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).

In her first assignment of error, plaintiff points out that

three treating physicians completed forms stating that she did

not retain the capacity to perform even the demands of sedentary

work activity. She argues that although the ALJ did give a

reason for rejecting those opinions - that they were based

entirely on “an unquestioning acceptance of plaintiff’s

complaints” - the record does not support that finding. 

Specifically, she notes that each of these three physicians not

only took a history from her, but also performed a variety of

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diagnostic tests and physical examinations, and that their

opinions were therefore supported by something besides her own

report of her symptoms and limitations. Additionally, she argues

that the ALJ unduly focused on earlier treatment notes to the

exclusion of later records which documented her symptoms and

which support the opinions of the treating doctors.

The legal principles relating to this claim are wellestablished. A treating physician's opinion is entitled to

weight substantially greater than that of a nonexamining medical

advisor or a physician who saw plaintiff only once. Lashley

v. Secretary of H.H.S., 708 F.2d 1048, 1054 (6th Cir. 1983);

Estes v. Harris, 512 F.Supp. 1106, 1113 (S.D. Ohio 1981). A

summary by an attending physician made over a period of time

need not be accompanied by a description of the specific

tests in order to be regarded as credible and substantial.

Bull v. Comm’r of Social Security, 629 F.Supp. 2d 768, 780-81

(S.D. Ohio 2008), citing Cornett v. Califano, No. C-1-78-433

(S.D. Ohio Feb. 7, 1979). 

A physician's statement that plaintiff is disabled is not

determinative of the ultimate issue. The weight given

such a statement depends on whether it is supported by

sufficient medical data and is consistent with other evidence

in the record. 20 C.F.R. §404.1527; Harris v. Heckler, 756 F.2d

431 (6th Cir. 1985). In evaluating a treating physician’s

opinion, the Commissioner may consider the extent to which that

physician’s own objective findings support or contradict that

opinion. Moon v. Sullivan, 923 F.2d 1175 (6th Cir. 1990); Loy v.

Secretary of HHS, 901 F.2d 1306 (6th Cir. 1990). The

Commissioner may also evaluate other objective medical evidence,

including the results of tests or examinations performed by nontreating medical sources, and may consider the claimant’s

activities of daily living. Cutlip v. Secretary of HHS, 25 F.3d

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284 (6th Cir. 1994). If not contradicted by any substantial

evidence, a treating physician's medical opinions and diagnoses

are afforded complete deference. Harris, 756 F.2d at 435. 

The Commissioner responded to this argument by pointing out

that, according to the ALJ, the objective evidence produced by

various tests and studies showed only mild abnormalities that

could not have been considered disabling. Further, there was

evidence from both other treating sources (particularly Dr.

Brown) and from non-examining physicians showing that she could

perform work activity at either the medium or light exertional

levels, and Dr. Villanueva expressed a similar view on at least

one occasion. The Commissioner also notes that the three doctors

who did express an opinion of disability did not agree with each

other on various matters, and that provided an additional reason

supporting the ALJ’s decision to assign them less weight. 

Finally, the Commissioner argues that it was apparent from the

record that some or all of these physicians accepted many of

plaintiff’s complaints at face value, and because the ALJ found

her not to be totally credible (a finding not disputed in her

statement of errors), the ALJ was entitled to use this as an

additional basis for rejecting the treating sources’ conclusions.

The ALJ specifically concluded that the objective medical

evidence did not support the opinions of Drs. Villaneuva, Song,

and Lingam. (Tr. 18). Citing to 20 C.F.R. §404.1527(d) and SSR

96-2p, he considered the pertinent factors but assigned

essentially no weight to their views. In doing so, he did not

state that their opinions were not based in part on tests or

other objective evidence, but rather concluded that the only

“plausible” explanation for their opinions, given the sparse

objective evidence of serious or disabling conditions, must have

been their willingness to accept plaintiff’s descriptions of her

symptoms. (Tr. 19). In reaching this latter conclusion, he

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thoroughly reviewed the x-ray evidence, which showed little in

the way of abnormalities; the MRI showing only some degenerative

changes; the results of Dr. Mueller’s examination, which revealed

only some tenderness in the paraspinal muscles; Dr. Moncman’s

examination, which was much the same; and the contrary opinions

of Dr. Brown, who had treated her for ten years, and of Dr.

McCloud and Dr. Vasiloff, the state agency reviewers. The ALJ

also gave plaintiff the benefit of the doubt as to functional

limitations and imposed a sit/stand option and limits on overhead

reaching, as well as limiting her to light work activity. (Tr.

19-20).

It is evident from the ALJ’s decision that his belief that

the three treating sources who pronounced plaintiff disabled must

have placed great reliance on her self-report of disabling

symptoms was by no means the only reason given for his decision. 

Rather, he explained why the test results from both the treating

sources and others did not appear to support an RFC for less than

sedentary work, and used that explanation to infer that the

treating sources must have based their opinions on something

apart from the objective medical evidence. This Court has

consistently upheld such determinations by an ALJ where the

objective evidence “shows mostly normal findings” or “shows no

significant abnormalities.” See, e.g., Hericks v. Astrue, 2012

WL 161105, *5 (S.D. Ohio Jan. 19, 2012), adopted and affirmed

2012 WL 441169 (S.D. Ohio Feb. 10, 2012); Stephens v. Sullivan,

792 F.Supp. 566, 570 (S.D. Ohio 1992). Because the ALJ had, and

articulated, specific and valid reasons for refusing to give

controlling weight to the opinions of Drs. Villanueva, Song, and

Lingam, he was then entitled to consider the other medical

opinions in the record and use them to determine plaintiff’s

residual functional capacity. The Court sees no error in the way

that task was performed, and therefore concludes that plaintiff’s

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first assignment of error provides no basis for reversal or

remand.

Plaintiff’s other argument is that the medical evidence

submitted to the Appeals Counsel satisfies the standard for a

sentence six remand. That evidence consists primarily of an EMG

the study showing C5 and C6 radiculopathy, and reported increases

in pain plaintiff claimed to experience in various joints such as

the shoulders, hip, neck and back. Plaintiff claims that this

additional evidence of her cervical radiculopathy is material and

may well have resulted in a change in the ALJ’s residual

functional capacity finding. The Commissioner, on the other

hand, argues that the evidence is not material because “it

consisted only of cumulative medical evidence and a patently

deficient medical opinion.” Commissioner’s memorandum, Doc. 20,

at 16-17. 

Again, the standard under which to judge a request for a

sentence six remand which is based on new and material evidence

is well-known. The remand provision of 42 U.S.C. §405(g) was

amended in 1980 in an effort to limit remands for consideration

of additional evidence in social security cases. Willis v.

Secretary of H.H.S., 727 F.2d 551 (6th Cir. 1984) (citing

Dorsey v. Heckler, 702 F.2d 597 (5th Cir. 1983)). The

statute provides that the Court may order a case remanded

for further consideration of additional evidence "only upon a

showing that there is new evidence which is material and

there is good cause for the failure to incorporate such

evidence into the record in a prior proceeding." 42 U.S.C.

§405(g). The plaintiff has the burden of proof on the issue

of whether a remand is appropriate.

 To show good cause, plaintiff must present some

justification for the failure to have acquired and presented

such evidence for inclusion in the record during the hearing

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before the Administrative Law Judge. Willis v. Secretary of

H.H.S., 727 F.2d 551; Birchfield v. Harris, 506 F.Supp. 251,

252-53 (E.D. Tenn. 1980). Evidence submitted after the ALJ's

decision and which is not reviewed by the Appeals Council

cannot be considered by the district court unless good cause

is shown for the failure to have presented the evidence to

the ALJ. Cotton v. Sullivan, 2 F.3d 692 (6th Cir. 1993).

 To be "material" within the meaning of 42 U.S.C.

§405(g), the new evidence must be relevant and probative and

must establish a reasonable chance that the Commissioner

would reach a different conclusion. Chancey v. Schweiker,

659 F.2d 676 (5th Cir. 1981); Thomas v. Schweiker, 557

F.Supp. 580 (S.D. Ohio 1983). New evidence on an issue

already fully considered is cumulative, and is not sufficient

to warrant remand of the matter. Carroll v. Califano, 619

F.2d 1157, 1162 (6th Cir. 1980). Additionally, the new

evidence must relate to a condition which affected the

plaintiff's ability to work at the time the administrative

decision was made. Evidence concerning a newly-developed

medical condition is not ordinarily relevant to the question

of whether the plaintiff was disabled at the time the

Secretary's decision was entered. Oliver v. Secretary of

H.H.S., 804 F.2d 964 (6th Cir. 1986).

Here, the Court agrees that none of this new evidence is

material to the ALJ’s decision because there is no probability

that a different decision would have been rendered had the ALJ

considered it. The ALJ did find that plaintiff suffered from

degenerative disease of the cervical spine, and imposed a

restriction on overhead reaching for that reason, as well as

limiting plaintiff to lifting no more than ten pounds. Thus, he

did consider the impact of her cervical condition, and, as the

Commissioner points out, the additional evidence she submitted

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showed only mild abnormalities in the cervical spine, and imaging

done of her shoulder was essentially normal. Further, additional

evidence as to her back condition again showed only mild to

moderate degenerative changes, and Dr. Villanueva’s repetition of

the earlier opinion as to disability was no more well-supported

than the former one. Plaintiff did undergo rotator cuff surgery,

but there is no indication that any functional limitations either

from the underlying condition or the surgery would have impacted

the residual functional capacity determined by the ALJ to any

significant extent, and certainly not for a 12-month duration. 

Consequently, there is no basis for ordering sentence six remand

here.

 VII. Recommended Decision

Based on the above discussion, it is recommended that the

plaintiff’s statement of errors be overruled and that judgment be

entered in favor of the defendant Commissioner of Social

Security.

VIII. Procedure on Objections

If any party objects to this Report and Recommendation,

that party may, within fourteen (14) days of the date of this

Report, file and serve on all parties written objections to

those specific proposed findings or recommendations to which

objection is made, together with supporting authority for the

objection(s). A judge of this Court shall make a de novo

determination of those portions of the report or specified

proposed findings or recommendations to which objection is

made. Upon proper objections, a judge of this Court may

accept, reject, or modify, in whole or in part, the findings

or recommendations made herein, may receive further evidence

or may recommit this matter to the magistrate judge with

instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to

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object to the Report and Recommendation will result in a

waiver of the right to have the district judge review the

Report and Recommendation de novo, and also operates as a

waiver of the right to appeal the decision of the District

Court adopting the Report and Recommendation. See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d

947 (6th Cir. 1981).

/s/ Terence P. Kemp 

United States Magistrate Judge

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